REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT ON SENTENCE
Case No.: CC 03/2011
In the matter between:
THE STATE
versus
JACKIE JACKSON
FIRST ACCUSED
KAVETU PONTIANUS KWANDU
ISASKAR NAU-GAWASEB
Neutral citation:
SECOND ACCUSED
THIRD ACCUSED
S v Jackson (CC 03/2011) [2013] NAHCMD 288 (17 October
2013)
Coram:
SHIVUTE J
Heard:
1 October 2013
Delivered:
17 October 2013
Fly note:
Criminal Procedure – Sentence – previous conviction of murder –
10 years old or more – Common law does not postulate that the such previous
conviction should be ignored – Court has a discretion to disregard or take into
account such previous conviction – An aggravating factor in appropriate case.
Criminal Procedure – Sentence – Accused convicted of murder – robbery with
aggravating circumstances – both crimes resulting from a single act– one
crime cannot be completely ignored by taking both counts together for
purpose of sentence –principle of double jeopardy – accused person should
2
not be punished twice for same offence – solution lying in ordering part of
sentence on robbery count to run concurrently with the sentence on murder
count.
Summary:
Criminal Procedure – Sentence – all accused persons convicted
of murder - Accused No. 3 has a previous conviction of murder of more than
10 years old – Common law does not postulate that the court should disregard
a previous conviction of 10 years old or more. A court has a discretion to
disregard a previous conviction of 10 years or more and treat the accused as a
first offender or to take into account the previous conviction. Accordingly, in
this case the court taking into account the previous conviction of murder in
respect of accused No. 3 as an aggravating factor.
Criminal Procedure – Sentence - Accused persons convicted of murder and
robbery with aggravating circumstances – both crimes resulting from a single
incident. The court cannot completely ignore one count by taking both counts
together for purpose of sentence – Principle of double jeopardy – Accused
persons should not be punished twice for the same offence – Solution to this
dilemma lies in the court ordering part of the sentence on robbery with
aggravating circumstances count to run concurrently with sentence on the
murder count.
SENTENCE
1st Count:
Murder: Accused Nos. 1 and 2 sentenced to twenty-eight (28) years'
imprisonment each.
Accused No. 3 is sentenced to thirty (30) years' imprisonment.
2nd Count:
Robbery with aggravating circumstances: Accused Nos. 1, 2 and 3
sentenced to fifteen (15) years' imprisonment each, five (5) years of which is to be
served concurrently with the sentence imposed on the murder count.
4th Count:
Attempting to defeat or obstruct the course of justice: Accused Nos.1, 2
and 3 sentenced to two (2) years' imprisonment each.
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Order:
(a) Short gun with serial No. 05013505 is to be returned to its lawful owner, Mr
Augustinus Jackson.
(b) The Nokia cell phone produced in this matter is to be given to the deceased’s
next of kin.
(c) In terms of s 10(6)(a) of Act 7 of 1996 each accused is declared unfit to possess
a firearm for a period of five (5) years effective from the date of each accused's
release from prison.
SENTENCE
SHIVUTE J:
[1]
The accused persons were convicted of murder, robbery with aggravating
circumstances and attempting to defeat or obstruct the course of justice preferred as
count 1, count 2 and count 4 respectively.
[2]
Ms Ndlovu appeared on behalf of the State whilst Mr Brockerhoff appeared on
behalf of the first accused. Mr Tjituri appeared for the second accused while Mr
Uirab appeared for the third accused. All counsel for the defence appeared on the
instructions of the Directorate of Legal Aid.
[3]
None of the accused persons testified in mitigation. Instead, submissions
were made on their behalf by their respective counsel and it is to these that I now
turn.
[4]
It was argued on behalf of accused No. 1 that he is now 24 years old. At the
time of the incidents he was 20 years old. He is a father of two minor children a boy
aged 5 years and a girl who is 5 months old. Accused No. 1 was working as a
mechanic prior to his incarceration in connection with this matter and was earning
about N$4000 per month. He also doubled as a security guard. He was maintaining
his minor children with the income he was earning. His level of education is Grade 8.
He is a first offender. Although he was released on bail he was incarcerated for
4
about 8 months before he was admitted to bail. Therefore, the court was urged to
consider the time he had spent in custody when sentencing him. It was further
argued on accused No.1’s behalf that he was relatively immature and youthful at the
time this incident took place. Counsel argued that the Court should not impose a
sentence that would break accused No. 1 as there is some room for rehabilitation. It
was further argued that accused No.1 cooperated with the police. He assisted the
police in recovering the deceased’s body and facilitated the arrest of the co-accused
persons.
[5]
As for the crimes, it was argued that accused No. 1 was convicted of a
serious crime of murder. When the Court is sentencing him it should treat this matter
on its own merits and should not sentence the accused in order to send a message
to deter would be offenders.
[6]
With regard to the interests of society, it was argued that society looks up to
the Courts to protect it, but the Court should not lose sight that the accused forms
part of this very society the Court is mandated to protect. His children also form part
of the society. For the Court to punish accused No.1 who is a productive citizen for a
lengthy period would only punish the society that the Court seeks to protect and tax
payers would suffer for contributing to the maintenance of accused No.1 if sentenced
for a lengthy period. In counsel's submission, no value or advantage would be
served by such prospect. Counsel further urged the Court to exercise a degree of
mercy on accused No. 1. The Court should consider suspending a portion of the
sentence. He further argued that the sentence to be imposed on the count of robbery
with aggravating circumstances should run concurrently with the sentence to be
imposed on the count of murder as the two counts are intertwined. With regard to the
fourth count of attempting to defeat or obstruct the course of justice, the Court should
consider imposing a fine. Counsel referred me to authorities concerning sentencing
to which I have had regard.
[7]
Accused No. 2’s personal circumstances were placed before the Court by his
counsel as follows: He is 30 years old. He was born at Simson Goro Village in
Kavango East Region. His father is now deceased and his mother is 60 years old.
Accused No. 2 is single and has a minor child aged 7. The child lives with his
unemployed mother. Accused No. 2 attended school at Alpho Moumombamba
Junior Secondary School up to Grade 10. He is a first offender. Accused No. 2 did
5
not accept any responsibility for the commission of these offences as he felt that he
was not the one who pulled the trigger and he never killed the deceased. He also did
not accept responsibility for the crime of robbery with aggravating circumstances as
he did not benefit in any manner from the commission of this offence. His counsel
argued that the level of blameworthiness must be accordingly put to each and every
accused as in his submission accused No. 2 was less blame worthy. Counsel argued
that it would be unfair if all accused had to serve a similar sentence. Counsel
therefore proposed that 15 years imprisonment on the count of murder be imposed
on accused No. 2 and 5 years imprisonment be imposed in respect of robbery with
aggravating circumstances which should run concurrently with the sentence to be
imposed on the murder count. In the alternative, the whole of the latter sentence
should be suspended. The sentence on the fourth count should also be wholly
suspended.
[8]
Personal circumstances of accused No.3 as placed on record by his counsel
are that he was born on 26 May 1972 in Windhoek. Currently he is 41 years old. At
the time these crimes were committed he was 37 years old. He attended school up
to Grade 8. During 1992 accused No.3 was convicted of murder. Whilst he was in
prison he completed his Grades 10 and 12 through Namibian College of Open
Learning (NAMCOL). He also completed a diploma in Business Management. He is
also a qualified plumber. The accused is an unmarried father of two boys. The first
born is 21 years old and is employed. The last born is an 11 year old Grade 5
learner. The youngest son lives with his mother who is unemployed. At the time of
the commission of these offences accused No. 3 was employed as a plumber. He
earned between N$3000 and N$4000 per month. At the time the accused was
employed, he had maintained both his sons. Both his parents are now deceased.
Prior to the father’s death, his father was assisting him to maintain his youngest son.
Now that he is no more, his child is suffering financially.
[9]
Counsel for accused No. 3 continued to say that once the accused is released
from prison, he intends to seek employment and continue to maintain his son. The
fact that accused No. 3 has a dependant should be considered as a mitigating factor.
He also has a reasonable prospect of getting a job once he is released from prison
because of the qualifications he holds, so counsel argued. Concerning accused
No.3’s health, he was diagnosed with some chronic diseases. Counsel produced a
copy of laboratory results as well as an extract from accused No. 3’s health passport
6
in this regard. Counsel further argued that accused No. 3 was arrested during April
2010 and he remained in custody since. He had roughly spent 3 years and 5 months
in custody waiting for his trial. The Court should therefore consider the period spent
in custody when determining the sentence.
[10]
As far as accused No.3’s previous convictions are concerned all of them are
older than 10 years. Therefore the court should not attach much weight to the
previous convictions. Counsel argued that when the accused was convicted of
murder in 1992, he was a youthful offender who had some level of immaturity as he
was only 18 years at the time. The accused was released from prison during
February 2001. The current offences were committed 9 years after accused No. 3
was released from prison.
[11]
Concerning the crimes committed, counsel for accused No. 3 argued that they
are all serious. In respect of the count of robbery with aggravating circumstances all
the property had been recovered except the SIM card. The owner did not suffer
severe financial loss. Accused No. 3 felt sorry for the deceased’s loss of life.
Accused No. 3 was only remorseful for committing the offence of defeating or
obstructing the course of justice but not remorseful for the crime of murder and
robbery with aggravating circumstances because he believes that he is not guilty and
it was counsel’s instructions that after accused No. 3’s sentencing, he would lodge
an appeal on counts 1 and 2.
[12]
With regard to sentence to be imposed Counsel argued that an appropriate
sentence would be a custodial one if one had to have regard to the seriousness of
the offences committed. However, he suggested that all offences be taken together
for purpose of sentencing as all offences primarily resulted from the same incident
and are closely related. Counsel further argued that should the court decide to
impose a separate sentence on each count, the court should consider suspending
the whole or a portion of it or in the alternative it should be ordered to run
concurrently to avoid the cumulative effect of a lengthy custodial sentence. He
suggested that a term of imprisonment ranging from 15 to 20 years in respect of the
murder count would be appropriate. In respect of count 2, the sentence should not
exceed 10 years and that it should be ordered to run concurrently with the sentence
to be imposed on the first count. Counsel referred me to several authorities
7
regarding principles of sentencing which I have considered in coming to appropriate
sentences in this case.
[13]
On the other hand, counsel for the State argued that the offences of murder
and robbery with aggravating circumstances are serious and are two distinctive
offences although they arose from the same course of action. Counsel further
argued that although accused No. 1 was youthful at the time he committed these
offences, in this subject matter youthfulness should not play an important role as a
mitigating factor because at the age of 20 accused No. 1 was already leading his life
as a matured person. He was employed as a security guard by the company that
was guarding the place where some of the crimes were committed. The first accused
was already a father. Apart from his job as a security guard, he doubled as a
mechanic. Therefore, he should be treated as a mature person in the manner these
offences were committed because accused No. 1 took a leading role. Counsel
argued that although youthfulness is normally a mitigating factor, in the
circumstances of this case it should not be considered as such. Furthermore,
accused No. 1 did not show any remorse for killing the deceased.
[14]
Counsel argued that the offences of murder committed in the course of
robbery with aggravating circumstances are prevalent. Counsel further argued that
the cases quoted by counsel for accused No. 3 whereby accused persons were
sentenced to 15 – 20 years imprisonment were imposed during 1999 and 2001 but
this did not deter the offenders to commit these offences. The State argued that for
the court to put a stop to these crimes the sentences meted out to the offenders
should now be a lengthy period of imprisonment, to stay in line with the present
sentencing pattern. She urged the court to impose separate sentences on counts of
murder and robbery with aggravating circumstances and part of the sentence on the
robbery count to run concurrently with the sentence to be imposed on the murder
count rather than have the two counts treated as one for the purpose of sentencing.
[15]
Concerning accused No. 3’s previous convictions that are more than 10 years
old, counsel for the State urged the court to consider the fact that accused No. 3 was
convicted of murder where a firearm was involved like in the present case. Even if he
was youthful when he committed the first murder, one expected him to be deterred.
Instead, he took another life using a similar instrument. With regard to accused No.
3’s state of health counsel argued that the accused is receiving medical attention
8
whilst he is in custody. He had access to a major hospital in Windhoek. Counsel
argued that when the court imposes a sentence, it should strive to meet the
expectations of society and the three accused persons should be given a uniform
sentence. It was again counsel for the State’s submission that they should not be
sentenced to less than 30 years imprisonment on the count of murder and not less
than 20 years on the count of robbery with aggravating circumstances. It was a point
of criticism by counsel for the State that for counsel of accused No. 2 to suggest a
sentence of 15 years imprisonment on the count of murder and 5 years
imprisonment on the count of robbery with aggravating circumstances counsel was
trivialising these two offences which were premeditated.
[16]
Counsel for the State further applied for the firearm used in the commission of
the offence to be returned to its lawful owner, Mr Augustinus Jackson, and the cell
phone to be returned to the deceased’s relatives in terms of s 34(1)(a) and 34(1)(b)
of the Criminal Procedure Act 51 of 1977. Furthermore, counsel applied for the court
to invoke the provisions of s 10(6A) of the Arms and ammunition Act 7 of 1996 for
the three accused persons to be declared to be deemed unfit to possess a firearm
after they served their sentences.
[17]
The court has considered the personal circumstances of each accused as
placed before it. It has also considered the offences committed and the interest of
society. The court has also taken into account the period each accused spent in
custody awaiting trial.
[18]
When accused No. 1 committed the crimes he has been convicted of he was
20 years old. He was a youthful offender. Although accused No. 1 was the youngest,
according to the evidence before court, he played a leading role than the two
accused persons who were much older than him. He was the one who approached
accused No. 3 to go with him to the stadium. He and accused No. 3 lured the
deceased to the stadium where he met his death. There is no evidence that he was
influenced by someone older and the type of offences committed as well as the
circumstances in which they were committed are normally not the type of offences
committed by immature persons. The first accused acted like a mature person. His
way of life also fits that of a mature person because he was employed and he was a
father already at the time of the commission of these offences. Accused No. 1 was
the one who asked what they were going to do with the deceased after they had
9
killed him. He drove the motor vehicle; he took the deceased’s cell phone and he
together with accused No. 3 sold the CD player that was removed from the motor
vehicle. He also threw away the ignition key of the motor vehicle that they robbed
from the deceased. I am therefore of the opinion that his youthfulness should not
play a major role when imposing sentence on him.
[19]
As far as accused No. 3 is concerned he has three previous convictions,
although these were more than 10 years old. One of them is a previous conviction of
murder. He was sentenced to 15 years imprisonment part of which was suspended.
He has had the benefit of the suspended sentence for murder. His previous
convictions are an indication that accused No. 3 is a person of bad character who
has no respect for human life. It is evident that from accused No. 3’s previous
convictions he has not taken any advantage of the lenience which the sentencing
court on previous occasions had shown towards him.
[20]
At common law the Court has unfettered but judicial discretion to disregard
previous convictions which are ten years or older. In S v Mqwathi 1985 (4) SA 22 (T)
the following appears in the English head note at 23E-F as quoted with approval by
Damaseb JP in S v Bezuidenhout 2006 (2) NR 613 (HC) at 614 with which
observations I agree:
'(T)he court now exercises an unfettered but judicial discretion, (to) decide, having
regard to the nature, number and extent of similar previous offences and the passage
of time between them and the present offence, to leave out of account the previous
convictions, even where the last previous conviction is less than ten years old, and
treat the accused as a first offender. The court can also, taking into account the
aforementioned factors, nevertheless decide to take the previous convictions into
account as an aggravating circumstance even where the last previous conviction is
more than ten years old.'
[21]
In essence the common law deals with the situation as to what weight a Court
should attach to previous convictions, including the ones which are ten years or
older. In that respect the Court is entitled, because of the age of a previous
conviction to disregard and to treat the accused as a first offender. The common law
does not suggest that a previous conviction of ten years or older must in all
circumstances be disregarded. In an appropriate case like this one it may be
regarded as an aggravating factor. The common law does not therefore postulate
10
that a previous conviction which is ten years or older, should always not count as a
previous conviction. (S v Bezuidenhout).
[22]
All accused persons have committed heinous crimes whereby the deceased
lost his precious life. This was not only a loss to the deceased’s family but to the
society as a whole. Accused persons No. 1 and No. 2 were supposed to maintain
law and order at their place of work but instead they turned the place into a slaughter
house. Accused No. 2 even went to the extent of falsifying the attendance register in
order to cover their tracks.
[23]
Although the crime of murder and robbery arose from the same incident no
crime should be completely ignored when sentencing by taking both counts together
for purpose of sentencing. (S v Alexander 2006(1) NR 1 (SC).The Court is also alive
to the principle of double jeopardy that the accused should not be punished twice for
the same offence. As was stated in S v Alexander, the solution is to order part of the
sentence to run concurrently.
[24]
The accused persons did not accept responsibility that they are the ones who
caused the deceased’s death and robbed him the motor vehicle while they were
armed with a deadly weapon. The three accused persons are dangerous elements
who need to be removed from society for a long time. Their personal interests are by
far outweighed by the interest of society.
[25]
Having considered the principles relating to sentencing, the submissions of
counsel as well as the accused persons' personal circumstances, the following
sentences are imposed:
1st count: Murder: Accused Nos. 1 and 2 sentenced to twenty-eight (28) years'
imprisonment each.
Accused No. 3 is sentenced to thirty (30) years' imprisonment.
2nd count: Robbery with aggravating circumstances: Accused Nos. 1, 2 and 3
sentenced to fifteen (15) years' imprisonment each, five (5) years of which is to be
served concurrently with the sentence imposed on the murder count.
4th count: Attempting to defeat or obstruct the course of justice: Accused Nos.1, 2
and 3 sentenced to two (2) years' imprisonment each.
11
Order:
(a) Short gun with serial No. 05013505 is to be returned to its lawful owner, Mr
Augustinus Jackson.
(b) The Nokia cell phone produced in this matter is to be given to the deceased’s
next of kin.
(c) In terms of s 10(6)(a) of Act 7 of 1996 each accused is declared unfit to possess
a firearm for a period of five (5) years effective from the date of each accused's
release from prison.
---------------------------N N Shivute
Judge
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APPEARANCES
STATE:
Ms Ndlovu
Instructed by Office of the Prosecutor General
ACCUSED NO. 1:
Mr Brockerhoff
Instructed by Directorate of Legal Aid
ACCUSED NO. 2:
Mr Tjituri
Instructed by Directorate of Legal Aid
ACCUSED NO. 3:
Mr Uirab
Instructed by Directorate of Legal Aid